Martin G C Helliwell

: Radiographer

: RA66114

: Final Hearing

Date and Time of hearing:10:00 10/08/2015 End: 17:00 14/08/2015

: Health and Care Professions Council, Park House, 184 Kennington Park Road, London, SE11 4BU

: Conduct and Competence Committee
: Suspended

Allegation

During the course of your employment as a Band 5 Radiographer with Salisbury NHS Foundation Trust (the Trust) from October 2011, you;

1. On the 7 November 2013, took three poor quality images of Patient A’s ankle.

2. On the 11 November 2013, had Patient B for a sternum x-ray and;

a. did not take an x-ray of Patient B’s chest;

b. required at least four attempts to x-ray Patient B’s lateral sternum;and/or

c. produced poor quality images of Patient B’s sternum.

3. On the 9 November 2013, did not put a Left/Right marker on Patient C’s pelvis x-ray.

4. On the 13 November 2013, x-rayed Patient D’s left femur with three exposures when it should have been the right femur.

5. On the 7 January 2014, made poor quality facial bones images for Patient E.

6. On the 20 January 2014, did not initially administer a biomarker capsule to Patient F before x-raying her abdomen.

7. On the 24 April 2014, irradiated an unknown patient’s carer, when you did not ensure they had any lead protection.

8. On the 8 May 2013, irradiated Patient G’s mother, when you did not ensure she had any lead protection.

9. Your actions as set out in particulars 1-8;

a. Exposed the patient to unnecessary radiation; and/or

b. Demonstrated unsafe clinical practice.

10. The matters described in paragraphs 1-9 amount to misconduct and/or lack of competence.

11. By reason of this misconduct and/or lack of competence your fitness to practise is impaired.

Finding

Preliminary Matters
1. The Registrant has not attended this hearing and has not been represented at it. The Panel is satisfied that the notice of hearing was sent to him at his registered address within the time limits set out by the Rules.  The Registrant is represented by the Director of the Society of Radiographers who has been in contact with the HCPC and confirmed that the Registrant is aware of today’s hearing. 
2. The Panel considered whether it would be fair to proceed in the Registrant’s absence.  On 23 June 2015 the Registrant’s representative applied for a postponement of today’s hearing on the grounds that it was premature because the Registrant continued to be employed by the Trust notwithstanding the difficulties which gave rise to the referral, and he was making good progress under revised working arrangements.  This application was considered by the HCPC but refused, on the basis that the reasons given for a postponement were more appropriately dealt with by the Panel if it reached a stage where it had to consider current impairment.
3. On 3 August 2015 the Registrant renewed his representations in the form of a written application from his representative to the Panel for an adjournment of the hearing, relying on his assertion of continuing good progress and also suggesting that the stress of attending the hearing could worsen his medical condition.  The Panel has had regard to the HCPC Practice Note on adjournments and the Practice Note on proceeding in absence and has sought to strike a careful balance between fairness to the Registrant and the public interest in the hearing proceeding when scheduled.  The Panel is satisfied that the hearing should proceed today because it is not unusual for a registrant, at the time of a final hearing, to be able to demonstrate that he or she is making progress in remedying past mistakes and to submit that as a result his or her fitness to practise is no longer impaired.  The Panel is well placed to assess that as part of the regulatory process and no unfairness to the Registrant will result from it. 
4. The Registrant also relied on a letter from his GP dated 29 July 2015 in which his doctor states that the Registrant suffers from a medical condition and that “a personal appearance at the hearing is likely to cause the Registrant a lot of distress and could worsen his medical condition....but obviously the final decision to appear or not is between him, yourselves and the HCPC”.  The Panel recognises that regulatory proceedings are inevitably stressful events for registrants as their ability to practise their chosen profession may be at risk.  However, the Panel is able to modify its procedures to reduce these stresses and to enable registrants to participate, for example by taking more regular breaks and by sitting short hours.  The Panel also notes that the Registrant is sufficiently well to be able to work 30 hours per week in his current employment in a busy hospital. 
5. The Panel concluded that there is insufficient evidence within the GP’s letter to justify an adjournment; for example the Panel has not been provided with a medical certificate asserting that he is unfit to attend the hearing, and in the Panel’s view the description of ‘could worsen his medical condition’ is simply too speculative.  The Panel is satisfied that the Registrant has voluntarily absented himself from the hearing, which he is entitled to do, and the Panel will not hold his non attendance against him in any way. 
6. The HCPC applied to make some minor amendments to the allegation to correct grammar and to clarify dates.  As there was no alteration to the substance of the allegation the Panel was satisfied that the changes could be made without causing unfairness and allowed them to be made.
Background
7. The Registrant has been employed at Salisbury District Hospital as a radiographer since October 2011.  He failed to complete his 6 month induction programme post qualification and was formally managed under the Trust’s Capability Policy, completing his induction in 9 months.  In 2013 several concerns were raised regarding his lack of competence and incidents of alleged misconduct which resulted in the Registrant receiving a written warning.  Subsequent to this warning a further series of incidents of alleged lack of competence and/or misconduct took place which were managed under the Trust’s Capability Policy and resulted in the Registrant being removed from clinical duties in April 2014.  A disciplinary hearing took place on 31 July 2014 and a final written warning was issued which he did not appeal.
Decision on Facts
8. On 14 March 2015 the Registrant completed the HCPC Response Pro Forma which asks the registrant if he admits the facts alleged against him, as set out in the Notice of Allegation.  The Registrant responded; “1 to 10 - YES, 11 – NO. THIS WAS TRUE AT THE TIME BUT IT IS NOT SO NOW”.  Therefore, the Registrant indicated that he admitted the facts and that those facts amount to misconduct and/or a lack of competence, and that at the time of the events in question his fitness to practise was impaired but that he is not currently impaired. 

9. The Panel has accepted the advice of the Legal Assessor that generally the best evidence of the truth of the facts alleged is an admission by the person concerned and that therefore the facts alleged are proved by an admission.   The Panel has borne in mind that the burden of proving the facts rests on the HCPC and that the standard of proof in these proceedings is the balance of probabilities.  In this case, as the Registrant was neither present nor represented and because the HCPC had asked the witnesses of fact to attend and/or give telephone evidence, it proceeded to hear evidence from those witnesses notwithstanding the Registrant’s admissions.  In order to avoid the witnesses having to return to give evidence a second time in respect of the issue of current impairment, the Panel heard evidence from them in respect of the facts and the Registrant’s current standard of work.  However, the Panel is mindful of the need to keep the two issues separate, and has been careful not to allow evidence of the Registrant’s continuing difficulties to affect its judgment of whether the facts as alleged have been proved.  The Panel has also considered each particular of the allegation separately.

10. The Panel has accepted the evidence of CE, Lead Radiographer at Salisbury District Hospital, who was appointed by the Radiology Manager at the hospital in late March 2014 to conduct an investigation into the allegations against the Registrant.  CE was a careful and cautious witness who observed some of the incidents first hand, and appeared to the Panel to be objective and impartial.

11. The Panel has found particular 1 of the allegation proved.  CE told the Panel that by looking at the position of the bones on the first image, a radiographer of the Registrant’s training and experience should have been able to determine how to move the patient into the correct position to ensure that he produced an image of good quality.

12. The Panel has found particular 2 of the allegation proved.  CE told the Panel that the Registrant carried on taking poor images of this patient without asking for advice or assistance and when asked about it, accepted knowing that the positioning was wrong.  He gave no reason for not taking a chest x-ray which was required.

13. The Panel has found particular 3 of the allegation proved.  CE told the Panel that a marker is required on all x-rays to enable the radiographer to determine which side of the body is being viewed.  If the wrong, or no marker is put on an image then someone viewing the image may misinterpret it, and in an extreme case an operation may be done on the wrong side of the patient’s body. 

14. The Panel has found particular 4 of the allegation proved.  CE told the Panel that the x-ray request form which was sent to the Registrant detailed which leg required an x-ray but nevertheless he took three images of the wrong leg thus exposing a young child to unnecessary radiation. 

15. The Panel has found particular 5 of the allegation proved.  The Panel heard from SB, who they found to be an objective and credible witness and from CE that The Registrant took x-rays of this patient while she was lying down, resulting in poor quality images which were inadequate for diagnosis.  CE told the Panel that the Registrant ought to have been able to adopt his technique and alter the exposure factors to produce a satisfactory image and should have asked for assistance if required. 

16. The Panel has found particular 6 of the allegation proved.  The Panel heard from ML, who gave clear objective evidence, and from CE that the Registrant took an x-ray of the patient without first administering the bio marker as he wrongly believed it not to be his responsibility to administer it.  CE told the Panel that taking the image before the patient had swallowed the bio marker was pointless and that if he was unsure he ought to have checked the Protocol, a copy of which is available in every x-ray examination room.

17. The Panel has found particular 7 of the allegation proved.  The Panel heard from MP, who gave clear consistent evidence that the Registrant took an x-ray of a patient in a wheelchair whilst the carer stood behind the wheelchair. If a radiographer requires the assistance of a carer when x-raying a patient it is imperative that the radiographer asks for the consent of the carer to be irradiated and to provide that person with lead protection before proceeding with the x-ray.  MP told the Panel that she had seen what was about to happen and shouted to the Registrant to stop, but that he continued and completed the x-ray.  The Panel is satisfied, having heard from MP about the layout of the room and how loudly she shouted “stop, stop”, that the Registrant must have heard her.

18. The Panel has found particular 8 of the allegation proved.  CE told the Panel that the Registrant allowed a student radiographer to take an x-ray of this patient in the presence of the patient’s mother, without offering the mother any lead protection.  The Panel has seen from the papers that initially the Registrant denied allowing the student to take an image before realising that the mother was not protected, and said that all images were taken after the error had been rectified.  However, the Panel has seen the Registrant’s subsequent email in which he accepts that the first exposure did take place prior to the patient’s mother being provided with lead protection.

19. The Panel went onto consider particular 9 of the allegation and heard from CE that exposure to radiation should be avoided unless clinically necessary because of the risk to health that radiation poses.  CE told the Panel that, in her professional opinion, the patients referred to in particulars 3 and 5 were not exposed to unnecessary radiation and therefore the Panel has found particular 9a proved in respect of particulars 1, 2, 4, 6, 7 and 8 only. 

20. The Panel is satisfied that all eight incidents demonstrate unsafe practice; unnecessarily exposing patients to radiation is obviously unsafe clinical practice because of the associated health risks.  In respect of the patients referred to in particulars 3 and 5, who were not exposed to unnecessary radiation, the Panel is satisfied that the Registrant’s clinical practice was nevertheless unsafe.  His failure to put a left right marker on patient C’s x-ray increased the risk of the wrong side of the body being operated on.  In respect of patient E, the Panel heard from CE that he produced poor quality images that made it more difficult to produce a diagnosis of the patient. In addition he should have passed information about the difficulty of the examination to the reporting team.
Decision on Grounds
21. The Panel then went on to consider whether the facts found proved amount to misconduct and/or lack of competence.  The Panel accepted the advice of the Legal Assessor that misconduct involves some act or omission which falls short of what would be proper in the circumstances and that the standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a practitioner in the particular circumstances.  The Panel also accepted the advice of the Legal Assessor that in order to establish a lack of competence the HCPC must show that the Registrant’s work fell below the standard of a reasonably competent practitioner of the Registrant’s experience and which has been demonstrated by reference to a fair sample of the practitioner’s work.   
22. In the Panel’s judgment the facts underlying particular 1 reflect a lack of competence because they form part of a consistent pattern by the Registrant of taking poor quality images.  Following this incident he was told by CE to consult with colleagues for advice in the future if he took two poor images of the same patient on the same occasion. 
23. The Panel found that particular 2 amounts to misconduct because the Registrant has admitted that he knew of the existence of the protocol and did not read it.  The Registrant was aware that he should have taken a chest x-ray as part of the examination but simply omitted to do so.  The Registrant knew that he needed to palpate the patient and did not do so and he knew that the patient’s shoulders were in the wrong position but carried on taking x-rays anyway, thus exposing her to unnecessary radiation.   The Panel is satisfied that the Registrant knew what was expected of him but did not do it.  In addition, he did not consult with a colleague regarding poor image quality despite this event taking place just 4 days after the event in particular 1. 
24. The Panel has found that particular 3, when taken together with the Registrant’s other mistakes and viewed in the context of a course of conduct of poor professional performance, demonstrates a lack of competence.  It does not cross the threshold for misconduct as it was an isolated incident of its type, and after receiving feedback his practice improved. 
25. The Panel has found that particular 4 amounts to misconduct as the Registrant relied on the mother’s influence on which limb to x-ray and failed to check the referral form which would have detailed which leg was to be x-rayed; this is a basic requirement and one which would have been known to the Registrant.  The evidence shows that the ability of the patient’s mother to give a reliable history was complicated by a language barrier, which ought to have made it obvious to The Registrant that it was inappropriate to rely on her for the history.  He has accepted that he did not double check the information against the paperwork and as a result the wrong limb was x-rayed three times and the child was exposed to unnecessary radiation.  The Panel heard from CE how the impact of radiation on a child can be more significant than to an adult and that this incident was sufficiently serious that it was reported to the Care Quality Commission (CQC).  
26. The Panel has found that particular 5 demonstrates a lack of competence; the Panel accepts that this was a difficult patient and that it was unusual to need to x-ray the patient lying down but a radiographer of the Registrant’s experience and training should have known to send the patient back to the ward rather than continue to try to take x-rays which were of such poor quality that they had little diagnostic quality. 
27. The Panel has found that particular 6 demonstrates a lack of competence; the Panel accepted that this type of examination occurred infrequently and that the Registrant did not know the correct procedure.  However, a copy of the written protocol is available in every examination room and the Registrant should have checked the protocol if he was unsure of how to proceed.
28. The Panel has found that particular 7 amounts to misconduct.  MP shouted loudly twice for him to stop and he ignored her.  The incident was sufficiently serious that the Registrant was removed from clinical duties immediately after and it was reported to the CQC.  An aggravating feature of this event is that the Registrant had already been warned of dangers of radiating third parties; some 11 months earlier during the incident reflected in particular 8.   
29. The Panel has found that particular 8 demonstrates a lack of competence; chronologically it took place before the event reflected in particular 7.  Therefore, it was the first incident of its kind and resulted in a written warning. 
30. The Panel has considered the Standards of Proficiency for Radiographers and the HCPC Standards of Conduct, Performance and Ethics and is satisfied that the Registrant has breached the following standards of Proficiency; 1.1 (know the limits of your practice and know when to seek advice or refer to another professional), 2.1 (understanding the need to act in the best interests of service users at all times), 14.1 (being able to conduct appropriate diagnostic or monitoring procedures, treatment, therapy or other actions safely and accurately), 15.1 (understanding the need to maintain the safety of both service users and those involved in their care).  The Panel is also satisfied that he has breached the following standards of Conduct, Performance and Ethics; 1 (acting in the best interests of service users), 6 (acting within the limits of your knowledge, skills and experience and, if necessary, refer the matter to another practitioner), 7 (you must communicate properly and effectively with service users and other practitioners).
Decision on Impairment
31. The Panel went on to decide whether the Registrant’s fitness to practise is impaired.  The Panel took account of the HCPC Practice Note ‘Finding that fitness to practise is impaired’.  It accepted the advice of the Legal Assessor that the test of impairment is expressed in the present tense and reminded itself that the purpose of Fitness to Practise procedures is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise.  The Panel looks forward not back but in order to form a view as to whether the Registrant is fit to practise without restriction today it has to take into account the way in which the person concerned has acted or failed to act in the past. 

32. The Panel has considered the two elements to impairment; the personal element and the public element.  In the personal element the Panel considered the Registrant’s past acts in order to establish whether his fitness to provide radiography services is currently below acceptable standards and whether he may pose a risk to those who may need to use his services in the future.  In assessing the likelihood of the Registrant causing harm in the future the Panel has taken account of the extent of any harm caused by him to the patients referred to in the allegation and his culpability for that harm.  The Panel has reminded itself that it must also take account of the public interest which includes the need to protect service users and the collective need to maintain confidence in the profession by declaring and upholding proper standards of conduct and behaviour. 

33. The Registrant provided the Panel with written submissions in support of his contention that his fitness to practise is no longer impaired and that therefore he is fit to practise without restriction on his registration.  In particular, in his written submission the Registrant relied on a meeting with CE during the week commencing 13 July 2015 and stated; “The manager (CE) expressed satisfaction with the registrant’s performance under revised work pattern and the registrant was of the view that by reducing his hours to 0.8 [Whole Time Equivalent] his sleep patterns had improved and although he still felt that he was suffering bouts of tiredness this had not given rise to concern.  The matter of tiredness is ongoing and under the review with Occupational Health and the GP.  At the present time the registrant is required to perform 90% duties that relate to his contract.  The 10% that he does not perform are the self imposed exclusions from the out of hours service.  We anticipate that this will be temporary and that in time the registrant will return to full duties.”

34. During the hearing the Presenting Officer asked CE whether the Registrant was now working satisfactorily and as a result, CE asked to refer to two letters she had written to the Registrant in respect of a meeting that she had with him on 11 June 2015, an email from the Registrant to CE dated 9 July 2015 and notes of a meeting she had with him on 13 July 2015.  The documents record that continuing concerns about his fitness to practise were raised following three incidents on two days in April and May 2015, seven sub standard radiographs taken on seven days in March, April and May 2015 and a substandard chest x-ray taken in June 2015.  The Panel was satisfied that it was in the interests of justice to allow the HCPC to rely on this evidence, as it was clearly relevant to the issue of current impairment and the Registrant’s assertion that he was now working satisfactorily.  The Panel was satisfied that the Registrant was aware of the contents of the June letters as they were sent to him and that he was aware of the issue in respect of the June chest x-ray as he sent the email about it to CE. 

35. Having heard from CE about the concerns that are documented in the record of her meetings with the Registrant in June and July 2015 and having had the opportunity to ask her questions, the Panel is satisfied that her account of the Registrant’s continuing poor performance is accurate.  CE told the Panel that in her professional opinion the Registrant was not sufficiently competent to be a safe practitioner working autonomously as a Band 5 radiographer.  She told the Panel that in her twenty years as a radiographer and as lead radiographer since 2009, she had never experienced a situation where a colleague had received such extensive supervision and ongoing training post qualification and yet still remained unable to practise safely unsupervised.  She explained to the Panel the strain providing so much extra support placed on the department and how it was not possible to ensure that the Registrant was constantly supervised which therefore could put patient safety at risk.  On the evidence that the Panel heard and has read, it is clear that the facts found proved are not isolated incidents and that the Registrant has not been able to remedy his past mistakes.  As a result, the Panel is satisfied that the Registrant’s fitness to practise without restriction remains currently impaired.

Decision on Sanction
36. The Panel then invited submissions on what sanction, if any, should be imposed.  The Panel had regard to the HCPC’s Indicative Sanctions guidance and accepted the advice of the Legal Assessor.  The Panel was reminded that it is not obliged to impose a sanction and that in appropriate cases may decide that no further action is required.  The Panel is satisfied that a sanction is proportionate in this case because no further action is only appropriate in cases involving minor isolated lapses where the Registrant has apologised, taken corrective action and fully understands the nature and effect of the lapse.  The misconduct and lack of competence found proved in this case took place on 8 separate occasions over the period of twelve months and so are not isolated incidents and cannot be described as minor lapses for the reasons already referred to by the Panel in its decision on impairment.    

37. The Panel was reminded that a sanction may only be imposed in relation to the facts which have been found proved and cannot be imposed on a wider basis than that revealed by the facts found proved.  It has borne in mind that the purpose of Fitness to Practise procedures is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise and that the primary function of any sanction is to address public safety from the perspective of the risk which the Registrant concerned may pose to those who need to use his or her services.  The Panel is aware that it must also give appropriate weight to the wider public interest which includes: the deterrent effect to other registrants, the reputation of the profession concerned and public confidence in the regulatory process. 
38. The Panel had regard to the principle of proportionality and considered the sanctions starting with the lowest first.  The Panel rejected mediation because it would not address the public interest and patient safety concerns resulting from the Registrant’s deficient professional performance. 
39. The Panel went on to consider whether a Caution Order was appropriate.  As the Panel has no doubt that the Registrant is not currently safe to practise without restriction, a caution order would not protect the public or maintain confidence in the profession and the regulatory process. 

40. The Panel next considered whether Conditions of Practice were proportionate and workable and concluded that such an order was not appropriate because the evidence shows that the Registrant requires full and direct one to one supervision, including retraining in basic skills, in CT scanning and knowledge of IRMER regulations until full band 5 competence is achieved.   The Panel is satisfied that the Trust has provided the Registrant with extensive support and retraining since the commencement of his employment in October 2011 but that he has not been able to remediate his shortcomings.  Therefore, the Panel is satisfied that a Conditions of Practice Order is not practicable. 

41. The Panel is also concerned by the lack of insight that the Registrant has shown into the root causes of his poor professional performance, particularly what the Panel considers to be clear evidence of the Registrant seeking to avoid full responsibility for his mistakes.  For example, in respect of patient D, the Registrant wrote in a reflective log that he “felt let down by the patient’s mother who should have intervened when she realised I was committing an error” and in respect of patient F, that it was an “accident waiting to happen” because he should not be expected to refer to the written protocol.

42. The Panel has decided that the appropriate and proportionate sanction is an order of suspension for twelve months.  A period of suspension will protect the public from the risk of repetition and act as a deterrent to others, whilst maintaining the public’s confidence in the regulatory process.  The Panel is satisfied that the Registrant’s misconduct and lack of competence may be capable of remediation and it considers that it would be fair to give him the opportunity to remedy his failings and to provide evidence to support this.   A twelve month period of suspension will give the Registrant an opportunity to focus on retraining if he chooses to pursue radiography as his chosen profession.

43. The Panel tested whether a Suspension Order was proportionate by going on to consider the next most punitive sanction, a Striking Off Order, but concluded that this case does not justify the ultimate sanction which striking off represents.  The Panel gave serious consideration to a Striking Off Order because of the Registrant’s limited insight and inability to resolve matters despite the Trust’s efforts.  The Panel has borne in mind its decision that only three of the eight particulars of the allegation amount to misconduct and that a striking off order is not available to the Panel as a sanction in respect of the remaining five particulars that reflect a lack of competence.  However, the Panel has borne in mind the guidance at paragraph 30 of the Indicative Sanctions Guidance and is satisfied that a striking off order, at this stage, would be disproportionate, bearing in mind that the Registrant has only been qualified for four years, and has shown some willingness to try to remediate his shortcomings.  The Panel is satisfied that a right minded member of the public, in possession of all the facts, would not be discomforted by the imposition of a suspension order as it represents a final opportunity to the Registrant to bring his professional performance up to an acceptable standard.

44. When considering the appropriate length of the order the Panel has had regard to paragraph 33 of the Indicative Sanctions Policy which states that in order to ensure a fair and consistent approach Panels should regard a period of twelve months as the benchmark and only decrease that period if the particular facts of the case make it appropriate to do so.  Accordingly the Panel has concluded that the appropriate length of the order is twelve months. 

45. This order will be reviewed towards the end of the twelve month period and this Panel would expect any future Panel to be assisted by the following;
• the Registrant’s attendance at the review,
• independent evidence of his current health,
• evidence of his adherence to HCPC CPD standards,
• references from any paid or voluntary employment,
• evidence of any training he has undertaken to address the misconduct and lack of competence identified, and
• evidence of the coping strategies he has developed to deal with stressful situations. 
For the avoidance of doubt, this list is not exhaustive and it is provided only for the Registrant’s assistance; he must understand that it does not bind the future Panel in any way.

 

Order



The Registrar is directed to suspend the registration of Mr Martin Helliwell for a period of 12 months from the date this order comes into effect.

Notes

Conduct and Competence Final hearing took place at the HCPC, London Monday 10 August to Thursday 13 August 2015.

Hearing history

History of Hearings for Martin G C Helliwell

Date Panel Hearing type Outcomes / Status
23/01/2018 Conduct and Competence Committee Final Hearing Hearing has not yet been held
11/08/2017 Conduct and Competence Committee Review Hearing Suspended
10/08/2016 Conduct and Competence Committee Review Hearing Suspended
10/08/2015 Conduct and Competence Committee Final Hearing Suspended